Employment Law Update

 

November, 2004

IACP Legal Officers Section

 

Jody M. Litchford

Deputy City Attorney

Orlando, Florida

 


 

Americans with Disabilities Act

 

Raytheon Co. v. Hernandez, 124 S.Ct. 513 (2003) – The US Supreme Court held that a “no-rehire” policy for employees terminated for violating a company’s drug and alcohol policy does not constitute disparate treatment discrimination under the ADA (Plaintiff had not pled disparate impact, so this theory of liability was not addressed).  The Plaintiff in this case had been employed at the company for 25 years.  He was terminated after testing positive for cocaine on a reasonable suspicion test.  He underwent a rehabilitation program and reapplied 2.5 years later.  He was denied reemployment, allegedly based on an unwritten no-rehire policy.  The case was remanded to allow Plaintiff to develop a pretext challenge.

 

Hernandez v. Raytheon, 342 F.3d 564 (9th Cir. 2004) (on remand) – Court of Appeals found a genuine issue of material fact exists as to whether Plaintiff was not rehired based on the policy or based on his status as an alcoholic (the latter being protected by the ADA).  Remanded to the District Court for jury trial.

 

Longen v. Waterous Company, 347 F.3d 685 (8th Cir. 2003) – After numerous problems with substance abuse, Plaintiff entered into a Last Chance Agreement, allowing him to get treatment, but subjecting him to termination if he used “mood altering chemicals.”  Four years later, Plaintiff was arrested for DWI, plead guilty and was terminated.  The Court upheld the validity of last chance agreements, even when they involve conditions that might be protected by the ADA, and found the termination not to be based on a disability, but rather on the violation of the agreement.

 

Williams v. Philadelphia Housing Authority Police Department, 380 F.3d 751 (3d Cir. 2004) – The Court held that a temporary inability to carry a firearm, caused by depression, can be a disability under the ADA if it precludes the employee from working in a “class of jobs.”  Further, the Court opined that a class of jobs could include “most law enforcement positions.”  The Court finally held that an employer can be liable for failure to accommodate persons who are not disabled, but perceived as disabled.  The reasonableness of the accommodation is judged according to the employee’s actual qualifications (at issue here was the employer’s disputed perception that the employee could not “be around” firearms, excluding him from any agency job).

 

Epps v. City of Pine Lawn, 333 F.3d 588 (8th Cir. 2003) – Inability to perform the particular job as a Pine Lawn police officer (due to degenerative disk disease) does not constitute inability to “perform either a class of jobs or a broad range of jobs” and therefore does not meet the definition of disability under the ADA.

 

 

Title  VII

 

Pennsylvania State Police v. Suders, 124 S.Ct. 2342 (2004) – In a case involving a Pennsylvania State Police communications operator, the Supreme Court held that in a constructive discharge case, unless the resignation was preceded by a tangible job action by the employer, the Faragher-Ellerth defense (existence of a reasonable policy not utilized by the Plaintiff) is available to the employer.

 

Speaks v. City of Lakeland, 315 F.Supp.2d 1217 (M.D.Fl. 2004) – After a one year sexual relationship between Plaintiff, a public safety aide, and a police sergeant, Plaintiff alleged that her relationship with the sergeant was unwelcome and that she had engaged in the relationship because she feared the sergeant would have her fired or transferred.  The Department had a sexual harassment policy disseminated to all employees.  The Department also took prompt disciplinary action upon learning of the allegations and no tangible job action had been taken against the Plaintiff.  Summary judgment was granted to the City.

 

McCurdy v. Arkansas State Police, 375 F. 3d 762 (8th Cir. 2004) – Swift, effective remedial action (transfer and discipline) taken against a supervisor who committed a single incident of sexual harassment, where the employee suffered no tangible job action, protects the agency from liability.

 

Cromer-Kendall v. District of Columbia, 326 F.Supp.2d 50 (D.D.C. 2004) – Female officer with the DCPD alleged harassment by her female sergeant, including repeated requests for sexual involvement.  When the Plaintiff reported this conduct to her supervisors, she was advised to contact the EEO office.  The Court denied summary judgment for the City, notwithstanding the absence of any tangible job action and the existence of a departmental anti-harassment policy because the supervisors had failed to take any remedial action when the harassment was reported to them.

 

Eich v. Board of Regents for Central Missouri State University, Department of Public Safety, 350 F.3d 752 (8th Cir. 2003) –  Based on minor incidents of unwanted touching and unwelcome jokes continuing over a seven year period, the Court of Appeals upheld a jury verdict of $242,272 to a detective sergeant, who was able to show she had complained of the behavior to the Chief at least sixteen times and ultimately resigned.

 

McKenzie v. Milwaukee County, 381 F.3d 619 (7th Cir. 2004) – Female officer, transferred from drug unit, filed suit alleging sexual discrimination based on a perceived lack of support from the unit commander. The Court held that her evidence of mistreatment not sufficiently severe to constitute harassment , nor did her transfer constitute a tangible employment action necessary to establish disparate treatment.  Summary judgment for County upheld.  Diary kept by officer also held not to constitute protected speech invoking First Amendment protection.

 

U.S. v. Delaware, 2004 Lexis 4560 (D.Del. 2004) – Cut off score of 75% on the ALERT reading comprehension and writing test for hiring state troopers had a disparate impact on black candidates.  Because Delaware was unable to establish the cut off score corresponded to the minimum qualifications necessary to do the job, the use of the test at that cut off score held to constitute unlawful discrimination.

 

Antonelli v. New Jersey, 310 F.Supp.2d 700 (D.N.J. 2004) – Process used to score firefighter applicant tests, where the cut off scores were set at a level to avoid disparate impact under the EEOC’s 80% rule, held not to constitute racial discrimination under an equal protection challenge.

 

Petit v. City of Chicago, 352 F.3d 1111 (7th Cir. 2003), cert. den. 124 S.Ct. 2426 (2004) – The Court upheld a race-conscious promotional process, designed to advantage certain minorities, based among other reasons on an operational need.  Applying the Supreme Court decisions in the Michigan educational cases, the Court found that it “seems to us that there is an even more compelling need for diversity in a large metropolitan police force charged with protecting a racially and ethnically divided major American city like Chicago.   Under the Grutter standards, we hold, the City of Chicago has set out a compelling operational need for a diverse police department.”

 

 

First Amendment Free Speech Issues

 

Roe v. City of San Diego, 356 F.3d 1108 (9th Cir. 2004) – Roe, a San Diego police officer, videotaped himself stripping off a generic police uniform and engaging in acts of masturbation.  He offered these videos for sale on an adults-only section of an on-line auction site.  The Department discovered this off-duty enterprise and terminated Roe’s employment.  The Ninth Circuit, using a rationale different from any other circuit, held that the First Amendment protects speech as being a matter of public concern if it is 1) off-duty; 2) not about private personnel matters;  3) directed to a segment of the general public; and 4) not motivated by an employment-related grievance.  The case was remanded for application of the Pickering balancing test.

 

Hardeman v. City of Albuquerque, 377 F.3d 1106 (10th Cir. 2004) – Speech pointing out conduct that was alleged to be racially motivated discriminatory conduct by public officials against other persons or groups is speech on a matter of public concern.

 

McCall v. Board of Commissioners of County of Shawnee, 291 F.Supp.2d 1216 (D.Kan. 2003) – Plaintiff’s speech, opposing discrimination based on sex, age and disability, which focused on her own employment and not harassment involving others is not speech on a matter of public concern.

 

McGreal v. Ostrov, 368 F.3d 657 (7th Cir. 2004) – Allegations of corruption involving government officials constitute speech on matters of public concern.  Case remanded for factual determination on balancing of interests.

 

Delgado v. Jones, 277 F.Supp.2d 956 (E.D.Wis. 2003) – Memo regarding investigation into spouse of City Alderman who was also a friend of the Chief resulted in Detective’s transfer (and loss of vacation days).  Court held that such speech could be protected under the First Amendment, denying summary judgment for the defendants.

 

Bradley v. Ramsey, 329 F.Supp.2d 617 (W.D.N.C. 2004) – After being advised by the Mayor not to arrest drunk drivers or domestic abusers or search for drugs, but to focus law enforcement efforts against non-voting ethnic groups, new Chief in City of Woodfin,  N.C. went to the NCPBA and the press with his concerns.  The Mayor then obtained information about the Chief’s sexual orientation and revealed that information to the City Board of Alderman.  The Chief was subsequently terminated.  The Court found the Chief’s speech on matters of corruption within City Hall to be protected by the First Amendment.

 

Markos v. City of Atlanta, 364 F.3d 567 (5th Cir. 2004) – Police Sergeant’s statements to the press about excessive force used by a fellow officer and an attempted cover up constitute speech on a matter of public concern.

 

Bradshaw v. Township of Middletown, 296 F.Supp.2d 526 (D.N.J. 2003) – Complaints to supervisors on internal incidents do not constitute speech on matters of public concern; public comments on the department’s response (or lack thereof) to assist Manhattan in the days following 9-11-2002 does so qualify.

 

Kirby v. City of Elizabeth City, 380 F.3d 777 (4th Cir. 2004) – Testimony at a personnel appeals board on behalf of a fellow employee about reliability of a particular police car does not constitute speech on a matter of public concern.

 

Anderer v. Jones, 2004 U.S.App. Lexis (7th Cir. 2004) – Statements to the press criticizing an officers’ arrest and stating his intent to sue the department concern solely private grievances of the officer and are not speech on a matter of public concern.

 

Sullivan v. Ramirez, 360 F.3d 692 (7th Cir. 2004) – Employees’ note taking on their supervisor’s and co-workers’ time in the office held to be speech on a matter of public concern, but not protected by the First Amendment based on a balancing of disruption to the workforce discipline and harmony.

 

Kinney v. Weaver, 367 F.3d 337 (5th Cir. 2004) – Two instructors at the East Texas Police Academy testified for the Plaintiffs in a police sniper fatality case.  Local Chiefs threatened not to use the Academy and insisted that the two instructors not train their officers.  One Chief asked that the instructors be fired.  Several agencies boycotted the instructors’ classes.  One instructor resigned and one was offered a lesser contract for the following year.  The instructors sued the police officials.   Reversing a grant of immunity by the lower court, the Court of Appeals held the instructors’ right to testify to be highly protected speech under the First Amendment.

 

Gibson v. Mayor and Council of the City of Wilmington, 355 F.3d 215 (3d. Cir. 2004) – Plaintiff challenged the constitutionality of police department regulation requiring members and employees “to be truthful and forthright at all times” on the basis that it was vague and over broad in violation of the First Amendment.  The Court of Appeals upheld the validity of the regulation as supporting a legitimate and important state interest.

 

Wernsing v. Thompson, 286 F.Supp.2d 983 (C.D.Ill. 2003) – Supervisor’s letter to five subordinates stating that “The Office of Inspector General staff are not authorized to communicate about Office of Inspector General policies or operations directly to the Secretary, to the press, or to any external agent except with my prior knowledge and approval” constituted an unconstitutional prior restraint of speech in violation of the First Amendment.

 

Piscottano v. Murphy, 317 F. Supp.2d 97 (D.CT. 2004) – Court denied injunction to five corrections officers the department was in the process of terminating or disciplining as a result of their association with the Outlaws motorcycle club.  The Court held that this social affiliation was not entitled to heightened protection under the First Amendment.

 

Anderson v. City of LaVergne, 371 F.3d 879 (6th 2004) – Court of Appeals upheld City’s policy barring dating relationships between police department employees of different ranks, and the forced resignation of Plaintiff for violation thereof, against a First Amendment challenge.

 

Peterson v. Hewlett-Packard, 358 F.3d 599 (9th Cir. 2004) – Court upheld termination of employee who posted biblical passages, which he believed condemned homosexual activity, in response to an employee campaign celebrating diversity in the workplace.

 

Delisle v. Brimfield Township Police, 2004 U.S. App. Lexis 4598 (unpub.) (6th Cir. 2004) – Police lieutenant’s claim that he was demoted and received poor performance evaluations after complaining to the Chief and the township trustees about the Chief’s use of religious speech at work allowed to proceed to trial.

 

Dixon v. Coburg Dairy, 369 F.3d 811 (4th Cir. 2004) – Lawsuit filed by construction employee terminated for refusing to remove confederate flag from his toolbox.  Case remanded to state court for reasons including the fact that the First Amendment restricts government, but not private, employers.

 

 

The Family and Medical Leave Act

 

Russell v. North Broward Hospital,  346 F.3d 1335 (11th Cir. 2003) – To meet the statutory definition of a “serious health condition” under the FMLA requires that the employee be incapacitated for “more than three consecutive calendar days.”  According to the Eleventh Circuit, this requires at least three full days of incapacitation.  Plaintiff’s FMLA claim was denied because she had been able to work partial days during the period at issue.

 

Aubuchon v. Knauf Fiberglass, 359 F.3d 950 (7th Cir. 2004) – Requests for FMLA leave must be properly documented.  Moreover, termination for independent reasons, discovered after the FMLA request, do not violate the FMLA.

 

Phelan v. City of Chicago – 347 F.3d 679 (7th Cir. 2003) – Employee on FMLA leave can be terminated for poor performance, even if the poor performance was discovered during the period of leave.

General Employment Law Cases

 

International Union (UAW)  v. Winters, 2004 U.S. App. Lexis 20543 (6th Cir. 2004) – Upheld a random drug testing program for probation and parole officers, non-custodial corrections employees, health and psychological services employees in the prisons, state hospitals and veterans homes (employees who carry firearms, provides health services to persons in custody, has unsupervised access to prisoners, probationers, parolees or controlled substances).

 

Garrido v. Cook County Sheriff’s Merit Board, 811 N.E.2d 312 (ILL. 1st Dist. 2004) – A deputy who tested positive for cocaine in a random test produced evidence that when she was in Peru to adopt a baby, a doctor at the hospital had recommended Mate de Coca tea for the baby and assured her that it was “de-cocainized.”  She alleged that she had consumed some of the tea.  After testing positive, she had some of the tea analyzed and it did indeed contain cocaine.  The department terminated her employment, which was sustained by the Merit Board and the Circuit Court. The appellate court, however, found that the application of the drug free workplace policy in this case was not rationally related to a legitimate state interest and ordered the deputy reinstated.

 

United States v. Thorn, 375 F.3d 679 (8th Cir. 2004) – After signing a computer use policy that provides the employer the right to audit computer use, a Missouri Division of Child Support Enforcement employee had no legitimate expectation of privacy in the contents of his computer.  Pornography, discovered during an administrative search of his computer during an investigation into workplace misconduct, could be used in a criminal case against the employee.

 

Minch v. City of Chicago, 363 F.3d 615 (7th Cir. 2004) – Police and firefighter challenge to a mandatory retirement at age 63 rejected.  Excellent summary of the law in this area under the ADEA.

 

Franklin v. City of Evanston, 2004 U.S. App. Lexis 20311 (7th Cir. 2004) – Overturned, on due process grounds, discharge of City employee who was arrested for possession of marijuana.  The employee was asked about the use while the criminal case was pending.  The City did not advise him that his answers would not be used against him in the criminal case (because, the City claimed, he was not being required to answer the questions, just given an opportunity) and the employee refused to give any response.  The City also declined to continue the hearing until after the criminal case was tried.

 

Cox v. Boxer, 359 F.3d 1105 (9th Cir. 2004) – Placement of stigmatizing information in an employee’s personnel file (here, a notice of termination for four instances of misconduct) constitutes publication when the governing state law classifies an employee’s personnel file as a public record, which is sufficient to trigger a liberty interest in a name-clearing hearing under the Fourteenth Amendment.

Anheuser-Busch, Inc., 342 N.L.R.B. 49 (2004) – The NLRB held that the use of surveillance cameras in the workplace is a mandatory subject of collective bargaining.  See also, National Steel Corp. v. NLRB, 324 F.3d 928 (7th Cir. 2003).

 

Brophy v. Philadelphia Police Department, 2004 U.S. Dist. Lexis 14665 (E.D.Pa. 2004) – Police applicant, who failed firearms and running tests and was dismissed from the police academy, was unsuccessful on his claim that the departments’ failure to hire him for this failure was a pretext for age discrimination, based on his age, 74.

 

Smith v. City of Jackson, 351 F.3d 183 (5th Cir. 2003), cert. granted, 124 S. Ct. 1724 (2004) – Jackson, Mississippi police officers sued over a pay plan which granted proportionately higher pay increases to officers with less than five years of service, alleging that this scheme violates the ADEA.  The Circuit held that the ADEA did not cover disparate impact claims.  The Supreme Court granted review and heard oral arguments November 3d.

 

Fair Labor Standards Act

 

Mortensen v. County of Sacramento, 368 F.3d 1082 (9th Cir. 2004) – County not required, as deputy sheriff argued, to schedule comp time off when requested “unless it would unduly disrupt operations,” but instead could authorize the time off within a reasonable period of time.  The use of a leave schedule with a limited number of slots available each day was a reasonable scheduling mechanism under the FLSA.  This decision is consistent with the Houston decision last year by the 5th Cir.; a similar issue is currently pending in a case filed by 16,000 police officers in the Southern District of New York,  Scott v. City of New York.

 

Leever v. Carson City, 360 F.3d 1014 (9th Cir. 2004) – Court ruled that if an agency pays canine officers a flat rate enhancement for canine care, in lieu of an hourly compensation, the rate setting must take into account the hours the officer actually spends in caring for the canine.  Court of Appeals reversed summary judgment granted to the City because, although the compensation had been negotiated with the Union, the City had not properly considered all relevant factors in setting that rate.

 

O’Brien v. Town of Agawam, 350 F.3d 279 (1st Cir. 2003) – Shift-differential pay, longevity pay, and career-incentive pay (contractually guaranteed amounts) must all be included in the officers’ regular rate for purposes of calculating overtime.  Further, in order to qualify for the 7(k) exemption the employer must announce a qualifying work period between 7 and 28 days in length (the period need not coincide with the pay period of even the actual practice of the employer).  See also, O’Hara v. Menino 312 F.Supp.2d 99 (D. Mass. 2004) (requiring calculation of back wages based on a 40 hour workweek).

 

Johnson v.  Unified Government of Wyandotte County, 371 F.3d 723 (10th Cir. 2004) – Court of Appeals upheld jury verdict that the County and the Housing Authority, where officers worked “off duty” were not joint employers for the purpose of calculating overtime under the FLSA.

 

© 2004, City of Orlando